Even as sedition charges fly thick and fast in the national capital, the Delhi police found itself under scrutiny from the Delhi High Court, which questioned whether the charge could be made against the president of the JNU students' union president Kanhaiya Kumar.

The Delhi HC has questioned why the case against him was not lodged on 9 February, when the protest had taken place.

"The presence at the spot is different from participation in the anti-national slogans," Justice Rani said and wanted to know "Whether he played any active role in raising anti-India slogans."

"Whether the mobile recording, done at your (police's) instance, showed that Kanhaiya had raised any such slogans," the bench asked the police during the hearing of his bail plea which was witnessed by his father, uncle and an elder brother and the cops assuring that the arrested students leader would "not be victimised" if it was found that he has no role.

The Delhi High Court's questioning indicates that despite the nationalist rhetoric and strongly-worded condemnations of the alleged protests by JNU students, securing a conviction may not be an easy task for the police.

Protests at JNU. File photo. Tarique Anwar/Firstpost

On the whole, prosecuting authorities have found it difficult to convince courts of people's involvement in cases of sedition. During the year 2014, only one person was convicted of sedition in India, while three were acquitted. As many as 411 people were undergoing trial for sedition during the year, according to data from the National Crime Records Bureau (NCRB).

In a hearing in September last year, the Bombay High Court, too, had made a clear distinction between criticism of the government and 'anti-national' activities, while staying a police circular which was interpreted to have a vague definition of sedition. "This (the circular) implies that everybody in the opposition can be put behind bars," the court had remarked, as per a report in The Times of India.

In its questioning of the police's stand, the Delhi HC, too, appears to be making a distinction between mere presence at an event and active participation in 'seditious' activities. During the hearing of the JNUSU president's case, Justice Rani, who reserved the verdict on Kanhaiya's bail plea for 2 March, sought clarification from investigators as to how the accused was leading the group shouting slogans when other political group of the students were also present.

"As per you (Delhi police) there were two (ABVP and AISF) groups. Explain how petitioner (Kanhaiya) was leading the group and shouted anti-India slogans," the judge asked and added "do the police have video evidence that Kanhaiya was raising anti-national slogans?"

Delhi Police, represented through Additional Solicitor General (ASG) Tushar Mehta, told the bench that they do not have any video in this regard but there was evidence that the JNUSU President was raising slogans and "the speech (by him) was more than political."

The ASG also said Kanhaiya denied his role even during his joint interrogation by the IB and Delhi Police.

"During the joint interrogation carried by the IB and the Delhi Police it has been found that he has raised anti-India slogans. He is not cooperating in the investigations and giving contradictory statements. He is also denying his role," Mehta said.

He said "there were statements of witnesses including security incharge of campus, a student who is not associated with any of the groups and others, and they have identified Kanhaiya and others raising anti-India slogans along with Afzal Guru's poster in their hand.

He submitted the joint interrogation by the IB and Delhi police establishes Kanhaiya's presence during the incident.

At this moment, the court asked several questions to the ASG as the submissions were not backed by video evidence.

The bench also asked why police officials who were present in plain clothes there did not take any action when the ASG himself had argued that such statements by the accused did not "sound good in taste".

"When your (Delhi) men were present on the spot there in the campus in civil dress why didn't they take cognizance when anti-India slogans were raised? Why they did not video record it? Why you waited for a TV news channel video?" it asked.

The bench asked if there was an independent video of the incident, why the same was not sent for forensic test.

The row over the protests at JNU has also seen a political fallout, with the BJP-led central government and the AAP government in Delhi taking contrary position. Even as several senior BJP leaders, including home minister Rajnath Singh, called for taking action against those making 'anti-national' statements, the AAP government has claimed that the JNUSU president is innocent.

"There is no clear CCTV footage. He is innocent. He is a man who stands by the Constitution. He is a student leader and so he was present there during the event," the AAP government counsel said.